Canadian Criminal Sentencing/Criminal Records

Record Suspensions

The Criminal Records Act, RSC 1985, c C-47 allows for a party to apply for a record suspension.

Application for record suspension
3. (1) Subject to section 4, a person who has been convicted of an offence under an Act of Parliament may apply to the Board for a record suspension in respect of that offence, and a Canadian offender, within the meaning of the International Transfer of Offenders Act, who has been transferred to Canada under that Act may apply to the Board for a record suspension in respect of the offence of which he or she has been found guilty.

Transfer of offenders
(2) For the purposes of this Act, the offence of which a Canadian offender within the meaning of the International Transfer of Offenders Act” who has been transferred to Canada under that Act has been found guilty is deemed to be an offence that was prosecuted by indictment.

R.S., 1985, c. C-47, s. 3; 1992, c. 22, s. 3; 2004, c. 21, s. 40; 2012, c. 1, s. 114.

– CRA

Prior to March, 2012, record suspensions under the Criminal Records Act was known as "Pardons".

Under s. 2, a record suspension "means a measure ordered by the Board under section 4.1".

Revocation

Under s. 7 of the Criminal Records Act,

Revocation of record suspension
7. A record suspension may be revoked by the Board

(a) if the person to whom it relates is subsequently convicted of an offence referred to in paragraph 4(1)(b), other than an offence referred to in subparagraph 7.2(a)(ii);

(b) on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct; or

(c) on evidence establishing to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension, or knowingly concealed some material particular in relation to that application.

R.S., 1985, c. C-47, s. 7; 1992, c. 22, s. 7; 2010, c. 5, s. 7.1(E); 2012, c. 1, s. 124.

– CRA

Prior to March 2012, this provision referred to revocation of pardons.

Pardons

Section 5 of the Criminal Records Act states the effect of a pardon:

Effect of pardon
5. The pardon

(a) is evidence of the fact that

(i) the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and

(ii) the conviction in respect of which the pardon is granted should no longer reflect adversely on the applicant’s character; and

(b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109, 110, 161, 259, 490.012 or 490.019 of the Criminal Code or subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act, or of a regulation made under an Act of Parliament.

R.S., 1985, c. C-47, s. 5; 1992, c. 22, s. 5; 1995, c. 39, ss. 167, 191, c. 42, s. 78; 2000, c. 1, s. 4; 2004, c. 10, s. 23; 2007, c. 5, s. 50; 2010, c. 5, s. 5.

– CRA

In March 2012, this section was repealed.

Purging Criminal Records

According to RCMP policy, absolute discharges are removed after one year from the date of sentence. If the date of completion of sentence predates July 24, 1992, it will only be removed upon written request of the individual.

Conditional discharges are removed after three years from the date of sentence. Similarly, sentences before July 24, 1992 are removed upon written request.

Travelling to the United States with a Record

Section 212(a)(2) of the Immigration and Nationality Act renders persons ineligible for a visa to enter the United States on the basis of criminality.

Persons convicted of offences of "moral turpitude", conspiracy to commit such offence, or any offence "relating to a controlled substance", are inadmissible.(s. 212(a)(2)(i))

This does not apply to any conviction for any offence with a maximum penalty of one year or less in jail and the sentence was no more than 6 months. (s. 212(a)(2)(ii)(II))

Likewise, a person convicted of an offence that occurred when the offender was under 18 years of age and more than 5 years have passed since the completion of any jail sentence, may still apply. (s. 212(a)(2)(ii)(I))

Acts of "moral turpitude" refers to any "act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

This includes certain offences:

• Fraud
• Assault (other than simple assaults)
• Arson
• Break and Enter
• Robbery
• Extortion
• Bribery
• Perjury
• Sexual Assault
• Kidnapping
• Manslaughter
• Murder

A pardon or suspension of convictions is not recognized by the United States for the purposes of entry.

A conditional discharge is not recognized and is still considered a conviction. However, an absolute discharge is not considered a conviction.

A withdraw of a charge, such as after the successful completion of diversion, will not render the person inadmissible.

Waiver

Under s. 212(h), the Attorney General may exercise discretion and waive the application of the inadmissibility for criminality in certain circumstances.

Finger Prints and Photographs

The Identification of Criminals Act RSC, 1985, c. I-1 authorizes the taking of fingerprints and photographs.

Section 2(1), permits the taking of fingerprints, photographs, or measurements for the purpose of identification for circumstances including:

• person is in lawful custody charged with or convicted of an indictable offence, except those under the Contravention Act, offences under the Security of Information Act or Extradition Act. (s. 2(1)(b))
• persons charged with an indictable offence who is required to appear under 501(3) or 509(5) under a appearance notice, promise to appear, recognizance or summons. (s. 2(1)(c))

Force may be used "as is necessary to the effectual carrying out and application of the measurements, processes and operations". (s. 2(2))

The collected information may only be published for "the purpose of affording information to officers and others engaged in the execution or administration of the law." (s. 2(3))